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In re Montagnino

Supreme Court of New York, Second Department

May 29, 2013

In the Matter of John D. Montagnino, petitioner,
v.
Barbara J. Fiala, etc., et al., respondents. Index No. 1236/12

Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh, N.Y. (Kathleen V. Wells, John Ingrassia, and Andrew Baginski of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Brian A. Sutherland of counsel), for respondents.

DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, SHERI S. ROMAN, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Department of Motor Vehicles Administrative Appeals Board dated October 25, 2011, confirming a determination of an administrative law judge dated February 15, 2011, which, after a hearing, found that the petitioner violated Vehicle and Traffic Law § 1146 and suspended his driver's license for one year.

ADJUDGED that the determination dated October 25, 2011, is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

Contrary to the petitioner's contention, the finding that he violated Vehicle and Traffic Law § 1146 by failing to exercise due care to avoid striking a pedestrian is supported by substantial evidence (see Matter of Cervoni v Commissioner of N.Y. State Dept. of Motor Vehs., 96 A.D.3d 742, 743; Matter of Guarino v New York State Dept. of Motor Vehs., 80 A.D.3d 697, 698; Matter of Fazzone v Adduci, 155 A.D.2d 540, 541). The evidence presented at the hearing demonstrated that the petitioner turned left out of a parking space and fatally struck a pedestrian he did not see before his vehicle struck her.

Under the circumstances of this case, and considering the petitioner's driving record, the one-year license suspension imposed was not so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law (see Matter of Kreisler v New York City Tr. Auth., 2 N.Y.3d 775, 776; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233; Matter of Martin v Adduci, 138 A.D.2d 599, 600).

The petitioner's remaining contention is without merit.

ANGIOLILLO, J.P., CHAMBERS, HALL and ROMAN, JJ., concur.


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